Court File and Parties

COURT FILE NO.: CV-21-00000587-0000 DATE: 2024/05/15 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: J.V., Plaintiff AND: LARRY CARL WHALLEY and THURSDAY’S LTD., Defendants

BEFORE: Justice I.F. Leach

COUNSEL: Chelsea A. Hishon and Anju Fujioka, for the Plaintiff Nicole Chutko, for the Defendants

HEARD: May 15, 2024

Endorsement

[1] This matter was called to trial on May 15, 2024.

[2] At that time, matters proceeded with selection of a jury of six persons and the selection of two “alternate jurors”; i.e., six jurors and two additional members of the jury panel, held in reserve, who had indicated their ability and willingness to serve and in respect of whom the parties similarly had indicated they were content.

[3] Although the matter was then stood down until 2:15pm that day, for contemplated trial continuation, it was then adjourned to this morning owing to the sudden onset of health concerns being experienced by defence counsel, and my necessary hearing of other matters previously scheduled for hearing yesterday.

[4] For reasons orally delivered on the record this morning, (which included the ongoing illness of defence counsel, the inability of carriage of the trial defence to be reassigned to other counsel effectively on short notice, inability of the trial to be completed as a jury or judge alone trial within the time allocated for trial even if the matter was reassigned to other defence counsel, and indications that my existing docket apparently would prevent any continuation of a judge alone trial before me for at least six months and perhaps much longer), I made the following orders:

a. Pursuant to Rule 36.01(2) of the Rules of Civil Procedure, leave was granted for the defendant Larry Carl Whalley, and Jo-Anne Whalley as representative of the corporate defendant, to be examined in advance of trial to obtain and preserve their evidence for presentation at trial if/as necessary, subject to the directions of the trial judge. Without limiting the generality of the foregoing, such advance examination, cross-examination and/or re-examination of Mr Whalley and Mrs Whalley was to be recorded via audio-video recordings capable of being played at trial.

b. Pursuant to Rule 52.02 of the Rules of Civil Procedure, trial of the matter was adjourned sine die, to a new date to be set in consultation with the London trial co-ordinator. [1]

c. The plaintiff’s motion for an order striking the jury notice pursuant to Rule 47.02 of the Rules of Civil Procedure was denied, without prejudice to the plaintiff renewing her request for such relief; e.g., if there was no agreement by the parties to strike the jury notice, the plaintiff desired to renew her request for such relief if trial of the matter by judge and jury could not proceed within the next 12 weeks as anticipated, and the plaintiff wished to argue that striking of the jury notice would facilitate trial of the matter by judge alone at an earlier date than awaiting trial by judge and jury.

d. Costs of preparation for trial “thrown away”, (in relation to preparation for commencement of trial on May 13, 2024), were awarded to the plaintiff, subject to their quantification being addressed by way of written cost submissions to be delivered in accordance with the following timetable and terms:

i. written cost submissions of the plaintiff in that regard, if any, were to be delivered within 12 weeks of from today, and were to be limited to five pages in length, not including any Bill of Costs.

ii. responding written cost submissions of the defendants in that regard, if any, were to be delivered within two weeks of the plaintiff’s written cost submissions addressed by the preceding sub-paragraph;

iii. reply written cost submissions of the plaintiff in that regard, if any, were to be delivered within one week of the defendant’s responding written cost submissions addressed by the preceding sub-paragraph; and

iv. if no written cost submissions were received within 12 weeks from today, no costs of trial preparation “thrown away” by the plaintiff, in relation to preparation for the commencement of trial on May 13, 2024, would be awarded. [2]

Justice I.F. Leach Date: May 15, 2024

[1] For the reasons I noted during the course of my oral decision, in my view adjournment of the trial was required in any event. At the time of my decision, I nevertheless also had been proactively informed by the London trial coordinator that unexpected developments had resulted in Justice Tranquilli becoming available, such that arrangements could and would be made to have Justice Tranquilli preside over a rescheduled trial of the matter within the next 12 weeks. I relayed that information and indication to the parties accordingly. Later in the day, however, I subsequently was advised that Justice Mitchell, (in her capacity as the current Local Administrative Judge for London), had decided that this matter could not be prioritized, as the trial had not been commenced aside from jury selection. In particular, while the unexpected health issues of defence counsel necessitating adjournment of the trial were recognized as being unfortunate, it was felt that those concerns did not justify prioritizing this matter in a manner that effectively would offer the parties a “fixed trial” date. In the circumstances, the London trial co-ordinator was instructed by Justice Mitchell to instead adjourn the matter to be spoken to in the next London civil assignment court, now scheduled for June 14, 2024.

[2] As indicated in my oral reasons, it was my intention to allow for and preserve the plaintiff’s ability to claim such costs “thrown away”, while also bearing in mind that the quantum of any such costs “thrown away” likely would be minimized, (perhaps to the point of being de minimus), if trial of this matter was rescheduled to proceed and did proceed in the near future; e.g., within the next 12 weeks, as contemplated at the time of the hearing before me this morning, based on the indications then received from the London trial coordinator. In other words, if trial of the matter was rescheduled to proceed in the near future, the plaintiff’s recent preparation for trial arguably would not have been wasted, or wasted in its entirety. That was the reason for the extended commencement of the timetable for delivery of written cost submissions; i.e., to allow for confirmation as to whether and/or when the rescheduled trial would proceed within the next 12 weeks, so that could be factored into the party’s cost submissions and my cost determinations.